Subject – Constitution

INTRODUCTION:

A Constitution is a set of fundamental principles or established precedents

according to which a State or other organization is governed. These rules together
make up, i.e. constitute, what the entity is. When these principles are written down
into a single document or set of legal documents, those documents may be said to
embody a written constitution; if they are written down in a single comprehensive
document, it is said to embody a codified constitution. Constitution was written by a
committee headed by Dr. Bhimrao Ambedkar. It took 2 yrs, 11 months, 18 daysfor
compilation. It was adopted on 26th November, 1949 (celebrated as Law Day),
and enforced fully on 26thJanuary, 1950 (celebrated as RepublicDay).

The Constitution of India is the longest written Constitution of any sovereign

country in the world, containing 444 Articles in 22 Parts, 12 Schedules while the
United States Constitution is the shortest written Constitution, at 7 Articles. At the
time of commencement, the Constitution had 395 Articles in 22 parts and 8
schedules.
 Constitution is said to be the supreme law of theland.
 The drafting of the document called the Constitution was pursued by an
assembly of elected representatives called the Drafting Committee, which
was chaired by Dr. B.R.Ambedkar.
 The above-said Committee prepared the draft of the Constitution. Then,
several rounds of discussions took place. More than two thousand
amendments wereconsidered.
 Every document presented and every word spoken in the Constituent
Assembly has been recorded and preserved under the name of Constituent
AssemblyDebates.

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SOURCES OF CONSTITUTION:

SOURCE PROVISION

Parliamentary government, Rule of Law, legislative

BRITISH CONSTITUTION procedure, single citizenship, cabinet system, citizenship,
prerogative writs, parliamentary privileges and
bicameralism.
UNITED STATES Fundamental rights, independence of judiciary, judicial
CONSTITUTION review, impeachment of the President, removal of Supreme
Court and High Court judges and post of Vice-President.
IRISH Directive Principles of States Policy, nomination of
CONSTITUTION members to Rajya Sabha and method of election of
President.
CANADIAN Federation with strong centre, vesting of residuary power in
CONSTITUTION the centre, appointment of state Governors by the Centre,
and advisory jurisdiction of the Supreme Court.
AUSTRALIAN Concurrent List, freedom of trade, commerce and
CONSTITUTION intercourse, and joint sitting of the two Houses
ofParliament.
WEIMAR CONSTITUTION OF Suspension of Fundamental Rights during Emergency.
GERMANY Soviet Constitution (USSR, now Russia) Fundamental
duties and the ideal of justice (social, economic and
political) in the Preamble.
FRENCH CONSTITUTION Republic and the ideals of liberty, equality and fraternity in
the Preamble.

Constitution Procedure for amendment of the Constitution

SOUTH AFRICAN and election of members of Rajya Sabha.

JAPANESE CONSTITUTION
Procedure established by Law.

While drafting the Constitutional Draft, several provisions were borrowed from
various written
and unwritten Constitutions all over the world.

Similarly the Constitution as a whole stands to its effect after having incorporated
several unique features and provisions from several other Constitutions.

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 CHAPTER 1

PREAMBLE
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST
SECULAR DEMOCRATIC REPUBLIC

and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTYof thought, expression, belief, faith and worship; EQUALITYof status and ofopportunity;

and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949,

do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”

Preamble means a preliminary or introductory statement, especially attached to a

statute or constitution setting forth its purpose. Preamble is an expressionary
statement in a document that explains the document's purpose and underlying
philosophy. When applied to the opening paragraphs of a statute, it may recite
historical facts pertinent to the subject of the statute. The preamble to the
Constitution of India is a brief introductory statement that sets out the guiding
purpose and principles of the document.
In re BeruBari’s case1, it was held that the preamble is not an integral part of
the Indian Constitution & therefore it can neither be regarded as a source of
limitations or substantive powers nor it is enforceable in a court of
law. However, Supreme Court of India has, in the Keshavananda Bharti
Case2, overruled earlier decisions and recognised that the preamble may be used to
interpret ambiguous areas of the constitution where differing interpretations present
themselves.

Forty-second Amendment, 1976: As originally enacted the preamble described the

state as a "sovereign democratic republic". In 1976 the Forty-second Amendment
changed this to read "sovereign socialist secular democratic republic." Also through
this amendment, the phrase "unity ofthe Nation" was changed to "unity and integrity
of theNation".

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 PURPOSE OF PREAMBLE

Preamble basically is a declaration of-

1. The source of theConstitution,
2. The statement of itsobjectives,
3. The date of its adoption andenactment.

 Preamble begins with a short statement of its basic values and it contains the
philosophy on which our Constitution is built. It is just like an introduction or
preface of a book. Preamble actually embodies the spirit of theConstitution.
 It is a key to the minds of thedraftsmen.
 It is also the soul of theConstitution.

PREAMBLE AND ITS INTERPRETATION

“We, The People of India…”

 This phrase simply indicates that it’s we people, the people of Indiawho are
the source of authority behind theConstitution.
 This also has an implication that the Constitution has been drawn up and
enacted by the people through their representatives, and not just handed
down to them by a king or any outsidepowers.

“..having solemnly resolved to constitute India..”

 That is to say that by declaring such a phrase we have actually abide

ourselves in it’s true
spiritstofollowandgivefulleffecttothepoliciesandprincipleslaiddownintheCons
titution.

“sovereign”

 This indicates that India is a sovereign, a nation free from any external control
or interference
i.e. no external power can dictate the government of India. India is internally
and externally sovereign i.e. externally free from the control of any foreign

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 power and internally, it has a free government which is directly elected by
the people and makes laws that govern thepeople.
 Constitution may appear to be sovereign as it is the supreme law of the land.
However, a document cannot be a sovereign. The people of India, according
to this Constitution have given to themselves this Constitution and therefore,
we can say that the political sovereignty lies in “We, the people..” and the
legal sovereignty lies in the Constitution ofIndia.
 The word “Sovereign” emphasizes that India is no more dependent upon any
outsideauthority.
 It’s membership of that Commonwealth of Nations and that of the United
Nations Organization do not restrict hersovereignty.
“socialist”

 The word “socialist” was not there in the original draft of the Constitution.
This has been incorporated in the Preamble by the 42nd Constitutional
Amendment,1976.
 This is also reflected in the words “..economic justice..” in the preamble. In a
democracy, socialism simply refers to a system of government in which the
means of productions are wholly or partly controlled by theState.
 It implies social and economic equality. Social equality in this context means
the absence of discrimination on the grounds only of caste, colour, creed, sex,
religion, or language. Under social equality, everyone has equal status and
opportunities. Economic equality in this context means that the government
will endeavour to make the distribution of wealth more equal and provide a
decent standard of living for all. This is in effect emphasized a commitment
towards the formation of a welfare state. India has adopted a socialistic and
mixed economy and the government has framed many laws to achieve
theaim.
 In D.S. Nakara v. Union of India (UoI), the Supreme Court has observed
that the basic framework of socialism is to provide a decent standard of
living to the people and specially provide basic social security from cradle to
grave. Therefore, it clearly marks the economic equality and equitable
distribution ofincome.
{Art. 39(b) and (c)}

“secular”

 The word “secular” also was not there in the original draft of the
Constitution. This has also been incorporated in the Preamble by the
Constitutional (42nd Amendment) Act,1976.
 It simply indicates that the State does not recognize any religion as its own
religion and thus, treats all religions equally. It’s a status of being neither
pro-religion nor anti-religion. It is also not based on total neutrality towards
religion. It is based on equal respect for all religions. It embodies the age old
concept of ‘sarva dharmasambhava’.
 Art. 25 to 28 constitutes the right to freedom ofreligion

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  Citizens have complete freedom to follow any religion, and there is no
official religion. The Government treats all religious beliefs and practices
with equal respect andhonour.
 In a secular State, the State regulates the relationship between man and man
and it is actually not concerned with the relation of man withGod.


“democratic”

 This is based on the legal status of “Damus Cratus” which means rule of
peoplei.e. where the Government gets its authority from the will of the
people. The rulers are elected by the people and are responsible tothem.
 There is a famous definition of democracy as given by Abrahim Lincoln that
“democracy is by the people, of the people and for thepeople.”

 The first part of the preamble “We, the people of India” and, its last part
“give to ourselves this Constitution” clearly indicate the democratic spirit
involved even in the Constitution. India is a democracy.
 This simply means that the government of our country is carried on by the
people of the State through their representatives and the executive head of the
State i.e. the President of India is an elected representative of the People (and
not a hereditary monarch as like King of England). In India, President is
elected by the people although he is elected indirectly. The people of India
elect their governments at all levels (Union, State and local) by a system of
universal adult franchise; popularly known as "one man one vote". Every
citizen of India, who is 18 years of age and above and not otherwise debarred
by law, is entitled to vote. Every citizen enjoys this right without any
discrimination on the basis of caste, creed, colour, sex, religion or education.

“republic”

 The Constitution of India is republican in nature as the executive head of

India is not any hereditary monarch. This indicates the form of Government
in which the Head of State will be an elected person and not a monarch like
the King or the Queen in England. Such elected Head will be the Chief
ExecutiveHead.
 This concept of being republic is taken fromFrance.
 As opposed to a monarchy, in which the head of state is appointed on
hereditary basis for a lifetime or until he abdicates from the throne, a
democratic republic is an entity in which the head of state is elected, directly
or indirectly, for a fixed tenure, the President of India is elected by an
electoral college for a term of five years. The post of the President of India is
not hereditary. Every single citizen of India is eligible to become the
President of the country. The leaders of the state and local bodies are also
elected by the people in similarmanner.
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  India became a republic on 26th January,1950.
“..and to secure to all its citizens..” - This is a declaratory statement wherein the
ultimate objective of the Constitution lies.

“..justice, social economic and political..”

Here, these words indicate that the Indian Constitution aims at achieving
three-fold justice. It’s simply about the attainment of common good and that the
people cannot be discriminated on the basis of caste, religion or gender or so and
that the government or the State should work for the welfare of the people as a
whole irrespective of their social status.
 Economic justicecan be and ought to be ensured by rational policy making
and it’s proper implementation. Socio-economic justice has been ensured by
provision such as Art. 38 and39.
 Political justiceis ensured by way of the right of adult franchise i.e. exercise
of right to vote as soon as a citizen attains the age of 18years.
 Social justiceactually requires the abolition of all sorts of inequities which
result from inequalities of wealth, opportunity, race, caste and religion. Art.
14 to Art.18 provides for equality of status andopportunity.
 The concept of social justice thus enables the legislature to enact and the
Courts to uphold such legislations-
(a) to protect the interests of the weakersections;
(b) to remove economicinequalities;
(c) to provide a decent standard of living to the people of thecountry.

“.liberty, of thought, expression, belief, faith and worship..”

The Constitution regards liberty of thought, expression, belief, faith and

worship to be essential to the development of the individual and the nation, and
therefore the Preamble itself promises to ensure the same toit’scitizens. In
simple words, there are no unreasonable restrictions on the citizens in what they
think, how they think, how they wish to express their
thoughts and the way they wish to follow up their thoughts in action. {Art. 19(1),
Art. 25, Art.26 makes provision of such liberty}

“..fraternity, assuring the dignity of the individual and the unity and integrity of the Nation..”

“Fraternity” means the spirit of brotherhood. Simply put it’s that all of us should
behave as if we are members of the same family and no one should treat any
other person as inferior owing to any factor. India being a multilingual and
multi-religious State, the unity and integrity can be preserved only through a
spirit of brotherhood that pervades the entire country, among all its citizens,
irrespective of their differences. Indian Constitution provides for a single

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 citizenship. All citizens have been given the right to move freely throughout the
territory of India and to reside and settle in any part of the territoryofIndia.
[Art.19(1)(d) andArt.19(1)(e)]

“..In our Constituent Assembly this twenty-sixth day of November, 1949, do hereby ADOPT,
ENACTAND GIVE TO OURSELVES THIS CONSTITUTION.”

This is a declaratory statement about the adopting, enacting the Constitution.

Art. 394 and some other Articles such as Art. 5, 6, 7, 8, 9, 60, 324, 366, 379,
380, 388, 391, 392 and 393 came into force on 26th Nov.,1949 (celebrated
asLawyer’s day)

The remaining provisions of this Constitution came into force later on

th
26 January,1950 which day is referred to as the day of commencement of
this Constitution. (As also celebrated as the Republic Day)

Preamble Whether a part of Constitution or not ??

&
Whether Amendable or not ??

In Re Berubari Case {AIR 1960 SC845}

The Supreme Court held that preamble is not a part of the Constitution as it
does not create any substantive rights or obligations or powers. It cannot be a
source of powers or restrictions on such powers. Further held that preamble is
just an important tool for the interpretation of the Constitution.

In Keshwanand Bharti’s case {AIR 1973 SC1461}

It was held that preamble of the Constitution cannot be compared to the

preamble of any other statute. It was also held that the objectives stated in the
Preamble reflect the basic structure of the Constitution. Thus, it must be
considered a part of the Constitution. It was not a provision as held in the
Berubari’s case.

S.R. Bommai v. UoI {AIR 1994 SC1918}

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 Supreme Court held that the preamble forms a part of the Constitution.

Can Preamble be Amended??

 As far as the power of the Parliament to amend the Preamble is concerned, it

can be concluded that the Preamble is a part of the Constitution and
therefore it can be amended by the Parliament under Article 368 but the
‘basic features’ in the Preamble cannot beamended.
 Till date, preamble has been amended only ones i.e. by the Constitution
(42nd Amendment) Act, 1976.
 By this 42nd Amendment, four words were added in the preamble i.e.
“socialist”, ”secular”, “and integrity”

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